Human rights and judicial review in the past year – Part 2/4: Articles 3 and 5
22 October 2010
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here.
Today I concentrate on Article 3: inhuman and degrading treatment (click here for previous posts on Article 3).
A range of cases – as ever, mostly arising in the context of immigration, extradition, and prisons – have been decided in the last year, but most are fact-specific, and few have given rise to particularly significant developments of principle.
Article 3 as a ground for anonymity
SSHD v. AP (No.2)  UKSC 26 –
The Supreme Court granted anonymity to a person subject to a control order, in part because to refuse anonymity could risk an infringement of his rights under Article 3. He was living in a town with “considerable community tensions” where there was “organised racist activity”. The case is an early example of an anonymity order being granted since the slightly earlier decision of the SC In re Guardian News and Media Ltd  UKSC 1, following which the Courts have been scrutinising applications for anonymity of parties with much more rigour.
Article 3 threshold
R (P) v. SSHD  EWHC 1087
A childless asylum seeker from India might suffer awkwardness and distress in her community, and exclusion from social events by reason of her infertility, but that did not amount to degrading treatment under Article 3.
ARTICLE 5: Right to Liberty
Article 5 and the Mental Capacity Act 2005
G v. E (By his litigation friend the Official Solicitor) and others  EWCA Civ 822 – see our post
In relation to deprivation of liberty cases involving persons lacking capacity, the CA found that the Court of Protection had correctly ruled that Article 5 did not create threshold conditions which had to be satisfied before it was open to the court to consider what was in the individual’s best interests in exercising its powers under the Mental Capacity Act 2005. The 2005 Act was held to embrace the principles set out in Article 5, and the Article 5 safeguards were reflected in the 2005 Act regime.
Control orders: relevance of Article 8 factors to Article 5
SSHD v. AP  UKSC 24 – read our post
A condition in a control order that interfered with the controlled person‟s Article 8 right to respect for his private and family life, but was justified under Article 8(2), could nevertheless be a decisive factor in creating a deprivation of liberty in breach of Article 5. As had been held by the HL in Secretary of State for the Home Department v JJ  1 AC 385, deprivation of liberty might take a variety of forms other than classic detention in prison or strict arrest. The court‟s task was to consider the concrete situation of the particular individual and, taking account of a whole range of criteria including the type, duration, effects and manner of implementation of the measures in question, to assess their impact on him in the context of the life he might otherwise have been living.
Damages for breach of Article 5
R (Pennington) v. Parole Board  EWHC 78 (Admin), Judge Pelling QC
Guidance was given as to the correct approach to assessing damages for a violation of Article 5. ECHR decisions, rather than the domestic scales for false imprisonment, provided the appropriate reference point.
Monday – Article 6, the right to a fair trial. In the meantime, you can read our previous posts on Article 3 here and Article 5 here.
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Although the lengthy judgment might have put off the casual reader and given the impression that it was confined to its facts, R v Evans  EWHC 1445 (Admin) merits inclusion in your Article 3 ECHR roundup.
The MoD was prohibited from handing over Afghan prisoners to the central Kabul facility mired in torture allegations and was ordered to put in place a much tougher monitoring regime than that which had been put in place. The fact that the case was decided upon the basis of a policy that adopted the Art.3 refoulement test rather than the Art.3 duty itself was not material.
Many thanks, Daniel – I agree that Evans (R (Evans) v. SoS Defence  EWHC 1445 (Admin) is an important case. I confess that in relation to Art 3 cases, I found it hard to make any selection among the large number of cases under this Article in the last year – many of which are striking and important on their facts. I was particularly looking for those which developed legal principle and/or were at CA level and above. In Evans, it seemed to me that that the outcome was based on a relatively conventional application of the law, albeit to unusual and troubling facts. In relation to Kabul my understanding was that the Government had a self-imposed moratorium on the transfer of prisoners to that facility – so no relief was considered to be necessary. Is there to be an appeal in relation to transfers to other Afghan facilities to which the Court was prepared to sanction transfers (albeit with reservations)?
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